Code of Criminal Procedure, The case of RAJESH SHARMA V. STATE OF UP 2017 SC

    INTRODUCTION

    In ancient times, the marriage rites in the Vedic period are associated with Kanyadan. It is laid down in Dharamashastra that the meritorious act of Kanyadan is not complete till the bridegroom was given a dakshina. So, when the bride is given over to the bridegroom, he has to be given something in cash or kind which constitute varadkshina.

    Thus, Kanyadan became associated with varadakshina i.e. cash or gifts in kind by the parents or guardian of the bride to the bridegroom. In ancient times the essence of this practice was different as the gifts were voluntarily given by the bride’s parents without any coercion. But as the society evolved, the essence of this practice diminished. People started using force and coercion to gain monetary benefits from this tradition.

    It was originally considered to be a token dakshina for the bridegroom but now this tradition is morally incorrect so a new name was given to this practice, i.e. dowry (dahej). In recent times this tradition is used by the bridegroom’s family to extort money and riches from the bride’s family. Dowry now days is an evil in roots of the society. This greed of money and riches led to crime against married women. Incidents of domestic violence, cruelty, burning of brides, homicides and other heinous crimes increased.

    At a point in India, and particularly in Delhi and other metropolis, dowry deaths and suicides have become a matter of great concern. If we speak of old times, in Delhi alone, a bride was burnt to death every twelve hours. A total of 162 cases of burning of women were reported in Delhi between 1 April and 30 June 1983. This was an all-time high number of such incidents, and dowry was the most prominent cause of such a phenomenon.

    The Central Government enforced the Dowry Prohibition Act, 1961(DPA) which aims to prohibit this evil practice of taking and giving dowry. Section 304B (dowry death) and       Section 498A were added in the Indian Penal Code 1860 (IPC). These are criminal offences hence providing more support to the Dowry Prohibition Act. These acts and provisions were proved to be effective as many victims of this evil got justice. However, in modern times some women use these provisions to their own benefit, by filing false cases against their husband and his family. The strict provisions of IPC and DPA are used as a weapon of harassment and cruelty by few unscrupulous women to fulfil their personal interest. This misuse of law had destroyed a large number of families. The Hon’ble Supreme Court had given land mark judgment in Rajesh Sharma v. State of Uttar Pradesh 2017 SC addressing to the offence of Dowry and Cruelty by husband and his family.

         BACKGROUND OF THE CASE:  RAJESH SHARMA V. STATE OF UP 2017 SC

    Charges against the accused

    In the case the accused was charged under section 498A and 323 of the Indian Penal Code 1860. Section 498A reads “Husband or relative of husband of a woman subjecting her to cruelty”. Section 323 reads “Punishment for voluntarily causing hurt”.

     Facts of the case 

    Proceedings have arisen from complaint dated 2nd  December, 2013 filed by respondent No.2 wife of appellant No.1. Appellants 2 to 5 are the parents and siblings of appellant No.1. The complainant alleged that she was married to appellant No.1 on 28th November, 2012. Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry. They started abusing the complainant.

    They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange. On 10th November, 2013, appellant No.1 dropped the complainant at her matrimonial home. She was pregnant and suffered pain in the process and her pregnancy was terminated. On the said version, and further version that her stridhan was retained, appellant No.1 was summoned under Section 498A and Section 323.

    Decision of Session Court and High Court

    The session court in its judgment found Rajesh Sharma guilty under section 498A. But later Sneha summoned her parents in law and the brother and sister of the husband. The said petition was accepted by session judge Jaunpur on 3rd July 2014. The appellant then approached the High Court against the order of summoning. Though the matter was referred to mediation center but without any avail. Then the High Court found no ground to support this petition and rejected it.

    The Central issue arising, in this case, was to check the constant tendency to rope in all the family members in the crime. It was stated in the petition that Sneha Sharma herself left her matrimonial home and her father in law was a retired government employee and her mother in law was a housewife whereas it was also stated in the petition that her sister in law and brother in law were unmarried government employee and had no interest in demanding the dowry from Sneha. After Rejection of petition in the High Court, appellant then moved to Supreme Court.

    Judgement of Supreme Court

    Hon’ble Justice Shri Adarsh Kumar gave verdict.  The Apex Court recognized and accepted that there was a gross misuse of the Penal provisions which was rampant in the society.  It accepted that action had to betaken in order to restore the provisions back to their original objective in the light of the human rights of the innocent.  The Supreme Court after carefully considering all the existing circumstances and the core issues at hand laid down several guidelines for screening the cases which were fraudulently filed in an act of vengeance or revenge.

    Directions were issued for the constitution of a Family Welfare Committee by District Legal Services Authority which would comprise of three members.  The objective of the Committee would be to look into every complaint which is made to the police or the Magistrate and it would make a report on the complaint comprising of its views on the initial facts and circumstances.

    It was held that none of the accused must be arrested until the time the Committee has not placed on record its report.  The objective behind the Committee was to screen the genuine cases from the frivolous ones thereby granting a relief to the individuals who were victims of false and malicious complaints.  It was further directed that the accused persons who are not in the territory be exempted from making personal appearances in the court and their appearances be marked by way of video conferencing.

    Comments. The case of Rajesh Sharma was a landmark case since it not only recognized but also attempted to put a measure of checks and balances when dealing with penal provisions which were being misused by some women.  However, the guidelines with regard to the Family Welfare Committee were done away with by a recent case decided by the hon’ble Supreme Court in the case of Social Action Forum for Manav Adhikar v. UOI 2018 (4) KHC 508 (SC).   Although the effect of the ruling in Rajesh Sharma’s case has been done away with, but still it was a paradigm shift in the position and the dialogue of the courts.  The ruling has lead to a working of a model for a precautionary measure which can be debated and looked into by the Parliament in order to combat the misuse of the dowry laws.

    Only HC Can Quash FIR/Complaint On Settlement

    It may also be recalled that another direction in the Rajesh Sharma case empowered District/Sessions Judge to quash FIR/Complaint on settlement between the parties. The District/Sessions Judge was also empowered to nominate any other senior judicial officer to pass orders of quashing.

    This direction in clause 19(iii) of Rajesh Sharma case read as follows:

    “In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord.”
    Truth be told, this did not find favour with the three-Judges Bench of Apex Court in this case which includes the CJI Dipak Misra. It was held that Section 498A IPC was a non-compoundable offence. Therefore, only High Courts had the power to quash the case on the basis of mutual settlement, as held in Gian Singh case. It was also held that, “The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafides of the petition, may quash the same. The power rests with the High Court.”

    Other Directions Not Disturbed

    At the same time, it is significant to note that the other directions in Rajesh Sharma case were left undisturbed by the three Judges Bench in this case. The Court approved the direction mandated in Rajesh Sharma’s case that red corner notices and impounding of passports in cases of accused staying abroad should not be done in a routine manner. The Apex Court also agreed that recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. Therefore, the directions in clauses 19(iv) and 19(v)were endorsed. As regards direction in clause 19(vii) which held that personal appearance of the accused should not be insisted and that video conferencing should be resorted to, the Court held that appropriate application seeking exemption from personal appearance, either under Section 205 CrPC or Section 317 CrPC, depending upon the stage of case, should be filed.

     Police To Be Sensitised

    Simply put, the Apex Court noted in this case that the police has to act as per the provisions of Section 41 CrPC and also the judgments of the Supreme Court in Arnesh Kumar, Lalita Kumari, DK Basu and Joginder Kumar cases before making arrests for offences under Section 498A of IPC. In Arnesh Kumar v State of Bihar and another (2014) 8 SCC 273, the Apex Court had held that arrest for offence under Section 498A IPC has to be made only in exceptional circumstances, that too after recording special reasons in writing in accordance with Section 41(1)(b) CrPC. In Lalita Kumari v Government of Uttar Pradesh and others (2014) 2 SCC 1, a Constitution Bench of Apex Court held that police has to carry out preliminary enquiry before registration of FIR in respect of matrimonial disputes.

    To be sure, in Joginder Kumar v State of UP and others (1994) 4 SCC 260, the Apex Court exhorted that police should not carry out arbitrary arrests. Also, in this case, the Apex Court held in para 26 that, “The directions issued by the Court are in the nature of statutory reminder of a constitutional court to the authorities for proper implementation and not to behave like emperors considering the notion that they can do what they please. In this context, we may refer with profit to a passage from Joginder Kumar v State of UP and others (1994) 4 SCC 260:

    “20. …No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of

    complicity in an offence. There must be some reasonable justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. “In D.K Basu v. State of WB (1997) 1 SCC 416, the Apex Court laid down procedural guidelines and safeguards to be followed by police while arresting.

    Having said this, it must also be pointed here that in this case, the Apex Court also held that, “We think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.”

    Conclusion

    The judgement of the case; Rajesh Sharna v. State of UP (2017 SC) formally recognized the misuse of the Section 498A and other corresponding sections. The Apex court laid down certain guidelines regarding the arresting procedure and investigation process that have to be followed by the police while dealing with the cases of Dowry and other related offences. Before   arresting the accused and his family the police must check the credibility of complaint filed and act according to the situation. The aim of this judgement was to prevent the misuse of law and safeguard the innocent. Over all it was a comprehensive judgment but later on it was reversed due to protests by feminist groups. Clearly this judgment didn’t dilute the essence of section 498A but it was to act as a watch dog against false cases of 498A and other related provisions.

    Bibliography

    Websites referred:

    1. www.manuparta.in
    2. www.indiankanoon.in
    3. www.iblogpleaders.in

    Statutory Reference:

    1. Indian Penal Code, 1860
    2.  Dowry Prohibition Act, 1961
    3. The Code of Criminal Procedure, 1973

    Book referred:

    1.         Ratan Lal and Dhiraj Lal’s the Indian Penal Code